Page:The English Reports v1 1900.pdf/1271

and something there must be as if scriptum in the will, otherwise you may raise an implication contrary to the intent, which ought carefully to be avoided.

The case put at the bar about the custom of London is right; that if a child insists on her customary share, where the testator has made a disposition of his whole fortune, she must disclaim in toto, and not take a legacy given by the will, if she will defeat it. But suppose the freeman had said, that in case any of his children insisted on the custom, then such child should receive only so much of the legacy; could the court say she should forfeit the whole, when the testator says she shall forfeit only so much? It does not fall within the rule or the reason of it. Most cases upon which that implication has been raised, have been founded on the testator's mistake; but can the testator in this be said to have made a mistake, when he puts the case that might happen, and provides for the event, by giving Gerard's share of the £2000 to Jacob and William? It cannot, I admit, be considered as a compensation, because not equivalent; it is an alternate devise; if the testator had power to devise Pelletstown, he gives it to Jacob and William, and then the provision he makes for his younger sons is of one kind: if he had not power to devise it, he varies the provision by annexing a condition to Gerard's estate, that he would give up £666 13s. 4d. his share of the £2000 to his brother. It is a rule in equity that if one indebted to another does by will give him a sum equal or more than the debt, it shall be deemed a satisfaction for the debt. Suppose then a man indebted to B. in £50 should by will give him £1000 in satisfaction of any injury or affront, could a court of equity imply a further satisfaction of the debt? No, surely. So in the present case, where the testator has said what shall be the compensation, is there any room to imply farther? The rule has been misapplied; it is a new case, and possibly was not attended to.

As to John's covenant, it is, in my opinion, very material; for if Jacob and William enjoyed Pelletstown, they could not have had Gerard's share of the £2000, if not, and they have value for it, is it not equal? John for £900 paid him by the mother, agreed to convey in confirmation of the will, and covenanted to suffer a recovery; if he had suffered the recovery, could Jacob and William have had Gerard's share of the £2000 or any satisfaction out of Ballynunry? The manner in which Christian expressed himself in the proviso I do not regard; I look upon it as if he had said, if my devise of Pelletstown does not take effect, then, etc. Now as John died without suffering the recovery, whereby the lands descended to Gerard, he has broke his covenant; and as it was for a valuable consideration, those who ought to have had the benefit of it are entitled to a satisfaction out of the real and personal estate of John. Are they then to have a full satisfaction, and have the third of the £2000, and a farther compensation out of Ballynunry? No. If John had confirmed the will, every compensation was out of the case: now Jacob has the real assets of John, to pay for the breach of covenant. It is true, it was devised to him subject to incumbrances, which ought not to have been paid before debts; and therefore, if sufficient assets did not remain to make him satisfaction, he ought to have Gerard's share of the £2000 pursuant to the will of Christian.

I shall therefore propose to your Lordships to declare, etc. ut supra.